By: Lisa M. Smith
With the recent Contempt of Congress vote against Attorney General Eric Holder, many are hearing the term “executive-privilege” for the first time. By definition, (as taken from the Merriam-Webster Online Dictionary) it’s exemption from legally enforced disclosure of communications within the executive branch of government when such disclosure would adversely affect the functions and decision-making processes of the executive branch.
The invocation of executive privilege allows the president to defy requests and subpoenas by members of the legislative and judicial branches for information the White House deems sensitive. President Obama invoked executive-privilege in the Fast and Furious gun-running investigation for documents the committee subpoenaed more than eight months ago. This privilege will keep tens of thousands of e-mails and other documents confidential.
According to uspolitics.about.com, the first recorded instance of executive privilege was in 1796. The House of Representatives asked President Washington for background material relative to the Jay Treaty with England. However, the Constitution grants all treaty powers to the Senate, not the House. President Washington released the documents to the Senate only.
In political history, the best-known example of executive privilege is probably related to the investigation of President Nixon and Watergate. Special Prosecutor Leon Jaworski subpoenaed audio tapes and written material relating to the Watergate investigation of White House staff. Nixon cited, unsuccessfully, executive privilege.
In the 1974 case United States v. Nixon, the Supreme Court ruled that executive privilege is not absolute. Although there is a “valid need” to protect “communications between high Government officials and those who advise and assist them in the performance of their manifold duties” … any expectation of confidentiality must be yielded in a criminal investigation. The Court ordered Nixon to surrender the tapes; two weeks later he did so; four days later, he resigned from office.
Republican lawmakers tried to make a point of saying that President Obama’s assertion of executive privilege contrasted with his previous criticism, when a Bush administration senator utilized the same privilege. Obama, who was also a Senator during this time, stated the Bush administration was “hiding” behind the privilege to avoid “coming clean” during a dispute over the firings of U.S. attorneys. In essence, he was against it before he was for it.
According to the Wall Street Journal, President Bush has claimed executive-privilege six times, and President Clinton has claimed it fourteen times, during their eight-year tenures.
Over the past 50 years, the following presidents have utilized Executive Order:
John F. Kennedy- directed his military adviser, Gen. Maxwell Taylor, to refuse to testify before a congressional committee examining the botched Bay of Pigs operation.
Lyndon B. Johnson- on three occasions, Johnson administration officials refused to comply with congressional committee requests for information.
Richard Nixon- claimed executive privilege three times to fight release of White House tapes during Watergate.
He lost in court. Before that, he had asserted the privilege three times. First, he directed his attorney general to withhold FBI reports from a committee in 1970. A year later, his secretary of state asserted the privilege to withhold information from Congress about military assistance programs. It was asserted again to prevent a White House adviser from testifying before the Senate Judiciary Committee regarding a nominee for attorney general in 1972.
Gerald Ford-directed Secretary of State Kissinger to withhold documents during a congressional investigation of covert activities in 1975.
Jimmy Carter-ordered his energy secretary to claim executive privilege after a committee demanded documents relating to a policy to impose a petroleum import fee.
Ronald Reagan-asserted the privilege three times—in an investigation of Canadian oil leases, in an inquiry about the EPA’s pollution enforcement practices, and at nomination hearings for William Rehnquist to withhold memos written by him years earlier when he was a lawyer at the Justice Department.
George H.W. Bush-asserted the privilege once, in 1991, ordering his defense secretary not to comply with a demand for document in an investigation of cost overruns of a Navy aircraft program.
Bill Clinton-because he didn’t issue written directives asserting privilege, he didn’t make it completely clear when he was asserting the privilege. He is generally regarded to have asserted the privilege 14 times, including four times in the face of grand-jury demands for documents.
George W. Bush-asserted the privilege six times, beginning with a denial of documents in an inquiry into the FBI’s mishandling of informants in Boston. He asserted it again in 2007 when a congressional investigation sought the testimony and papers of two senior aides, Harriet Miers and Joshua Bolten over the removal of U.S. Attorneys.
In an article, written by John Hinderaker, he states….in the Fast and Furious case, the “presidential privilege” clearly does not apply. The administration has said that President Obama had nothing to do with any of the relevant events, and the president says that he learned of the Fast and Furious program “on the news.” How could the President of the United States not know or have nothing to do with an operation of this magnitude? Seems like they are upset that this Black Man has power and is using it.